House of Lords - Explanatory Note
Access to Justice Bill [H.L.] - continued          House of Lords

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Criminal Defence Service

91. Clause 12: The Criminal Defence Service. This clause places the Commission under a duty to establish, maintain and develop the Criminal Defence Service, for the purpose of protecting the interests of people involved in criminal investigations or criminal proceedings. The clause also defines "criminal proceedings". The Criminal Defence Service will consist of the advice, assistance and representation provided under clauses 13 and 14.

92. The Legal Services Commission will gradually take over the functions currently undertaken by the higher courts in respect of criminal legal aid. At first, Court Service staff will continue to determine costs in many Crown Court cases but the numbers will diminish as the Commission increases the proportion of cases covered by contracts. Staff at the Court of Appeal (Criminal Division) and the House of Lords will continue to determine costs in cases before those courts, although the scope for the Commission to contract for these cases as well will be considered in due course.

93. Clause 13: Advice and assistance. This clause places the Legal Services Commission under a duty to provide such advice and assistance as it considers appropriate for individuals who are arrested and held in custody, and in other circumstances to be prescribed by the Lord Chancellor in regulations.

94. Initially it is intended that regulations will re-establish advice and assistance in broadly the categories for which it is currently available, except that it will be restricted to people involved in criminal investigations or proceedings. The current categories include advice and assistance provided by duty solicitors at a magistrates' court, at a solicitor's office, to a "volunteer" at a police station or to someone being interviewed in connection with a serious service offence.

  • A serious service offence is an offence under any of the Army Act 1955, the Air Force Act 1955 or the Naval Discipline Act 1957 which cannot be dealt with summarily or which appears to an interviewing service police man to be serious.

95. Clause 13 also enables the Commission to comply with this duty by securing advice and assistance through entering into contracts; by itself providing it through employed lawyers; by establishing and maintaining bodies; by making grants or loans to persons or bodies; or to individuals or groups of individuals to obtain it. It also enables the Commission to secure the provision of advice and assistance by different means in different areas in England and Wales and in relation to different circumstances.

96. The aim of this clause is to provide the Commission with a range of options for securing advice and assistance in criminal matters. Contracting with quality assured suppliers should provide greater control over both expenditure and the quality of the service provided; and better value for money.

97. The ability to provide services through lawyers in the Commission's own employment will provide important flexibility if, for example, there is limited coverage by private lawyers in rural areas. Using employed lawyers should also provide the Commission with better information about the real costs of providing these services. The ability to create bodies, such as a Criminal Law Centre with salaried lawyers, and to make grants or loans, will allow the Commission to tailor the way in which services are provided to reflect differing local circumstances.

98. Clause 14: Representation. This clause places a duty on the Commission to secure the provision of representation to a person granted a right to representation in accordance with Schedule 3, and in such other circumstances as the Lord Chancellor may prescribe. It enables the Commission to comply with this duty in the same way as clause 13, but it also allows the Commission to make payments to representatives for individual cases under regulations. This will allow the Commission to continue to pay non-contracted lawyers to provide representation during the transitional period while contracting develops; and to continue to do so if that proves to be the best means of securing the necessary services in certain circumstances. Clause 15 provides for regulations to determine remuneration in these cases.

99. Clause 14 also provides that defendants granted a right of representation can choose their representative, except as provided in regulations. These regulations will allow defendants' choice of representatives to be restricted to those who hold contracts with the Commission. The intention is that, in time, the Commission will provide all, or nearly all, representation exclusively through contracted or salaried defenders, whom it will require to meet defined quality standards.

100. In certain types of cases - such as serious fraud trials - defendants' choice may be further limited to representatives from a panel of firms or individual advocates who specialise in a particular type of case. Membership of a panel will depend on meeting pre-determined criteria. In this way, the Commission can ensure that defendants facing charges in these exceptional cases are represented by those with the necessary expertise, experience and resources.

101. Clause 14(6)(a) enables the Lord Chancellor to make regulations defining circumstances where a defendant will not have a right to a choice of representative, but will instead have a representative assigned to them. Such regulations will be subject to the affirmative resolution procedure (see clause 23(3)). This power might be used, for example, to assign an advocate to a defendant charged with serious sexual offences where the victim/witness is a child. (Unrepresented defendants may not cross-examine child witnesses directly when charged with violent or sexual offences).

102. Schedule 3 sets out the nature and extent of a person's right to representation under the Bill. It deals with:

  • the persons to whom a right of representation may be granted.

  • the extent of the right.

  • which courts and bodies are competent to grant representation.

  • the availability of an appeal against the refusal of a right to representation.

  • the criteria for granting the right.

103. The aim of the Schedule is to ensure that representation is granted to defendants or appellants in criminal proceedings where the interests of justice require it. The factors to be considered in assessing the interests of justice mirror section 22(2) of the Legal Aid Act 1988. Other provisions in the Schedule also reflect provisions in the 1988 Act.

104. Clause 15: Regulations about payments to representatives. This clause enables the Lord Chancellor to make regulations to provide for the remuneration of lawyers for representation supplied in accordance with Schedule 3, which is not provided under contract or by lawyers employed by the Commission. Regulations made under this clause may prescribe the amounts to be paid as remuneration for representation, or those costs incurred in providing representation which may be reimbursed. They may also specify by whom, and how, the amounts payable under the regulations should be determined, and how these amounts can be reviewed and appealed against.

105. Under the existing system, the Lord Chancellor is required to consider a number of statutory factors in making regulations setting out arrangements for remuneration. These include the time and skill required, the general level of lawyers' fee income and expenses, and the number and competence of legal representatives involved in legal aid, as well as the way the regulations would affect the handling of the work and the cost to public funds. Most remuneration will in future be a matter for negotiation between the Commission and providers seeking contracts. Although the current factors are likely to remain among those which the Lord Chancellor may wish to consider in relation to non-contractual payments, neither they nor the requirement to consult the General Council of the Bar and the Law Society about remuneration regulations would be re-enacted by clause 15.

106. Clause 16: Terms of provision of funded services. This clause sets out the circumstances in which a person will have to pay towards the cost of criminal defence services provided under the scheme. It makes no provision for payments to be made in respect of help provided through advice and assistance. Where representation is provided, a defendant may have to pay towards the cost of the service unless they are acquitted in the Crown Court. The clause creates a new power, subject to regulations, for a trial judge in the Crown Court to order that a defendant who is not acquitted should pay towards the costs of representation. The judge will be able to ask the Commission to investigate a defendant's means before making an order. The clause enables the Lord Chancellor to make regulations setting out how the new power should be applied.

107. Under the current criminal legal aid scheme, most defendants (about 95%) are not required to make a contribution to their defence costs. Those who do contribute and are acquitted have their contributions returned. The cost of means testing and enforcing contribution orders is high in relation to the contributions recovered. In 1997-98, criminal legal aid contributions totalled £6.2 million, while the direct cost of administering the system was about £5 million. Means testing also leads to delays in cases being brought to court, because cases have to be adjourned when the evidence required to conduct the test is not produced.

108. Clause 17: Funding. This clause requires the Lord Chancellor to provide the necessary funding of criminal defence services secured by the Commission in accordance with clauses 12 to 14. As a result, like legal aid, the Criminal Defence Services will be a demand-led scheme. The clause also enables the Lord Chancellor to determine the timing and way in which this money should be paid to the Commission, and requires the Commission to seek to secure the best possible value for money in funding the Criminal Defence Service.


109. Clause 18: Foreign law. This clause restrictions the provision of information of information and advice on matters of law to the law of England and Wales, while giving the Lord Chancellor power to direct that exceptions should be made where it is necessary to fulfil the United Kingdom's international obligations. The restrictions are no tighter than those currently existing. The Lord Chancellor will make exceptions through directions rather than regulations, which is consistent with the approach to other exclusions from scope (see paragraphs 73-77 of these notes).

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Prepared: 3 december 1998